Out-Preparing the Opposition in Class Action Employment Litigation - Part 2
Hit Hard, and Hit Early - Part 2 of 2
In part 1 of this topic, we covered Substantive Themes which is the first component of a three-dimensional framework representing a structure for optimal persuasion in class action employment litigation. Part 2 covers Witness Performance and Demonstrative Exhibits.
With the recent Supreme Court ruling in the Wal-Mart class action sex discrimination case, many litigators in employment cases expect pre-Rule 23 depositions to be more numerous and pervasive than they were in the past. In addition, the most damaging incidents occurring in witness testimony in class action employment matters almost invariably occur early, in depositions that occur even in the pre-certification stage. For example, in a race discrimination case in 2005, a senior manager at the defendant company with over 100,000 employees indicated in a rule 30b6 deposition that he believed that the “N” word could be considered as a “term of endearment.” This statement would have been avoidable had the witness been adequately trained before the deposition, but once it went on the record, the case was essentially poisoned from the inside out and the defense trial team never fully recovered. As a result, the defendant was forced to settle for more than $150 million.
Witness effectiveness training involves components that are both verbal and nonverbal, the latter being comprised of “body language;” facial expressions; tone; mannerisms; and similar areas of conduct. Moreover, these nonverbal components of witness performance constitute the vast majority of the overall message that is ultimately delivered. The value of a case for settlement purposes fluctuates markedly based on the nonverbal performance of videotaped depositions, and witnesses typically do not know how they “play on tape” until it is too late to change it. Impressions of witnesses regulate the conduct and settlement posture of opposing counsel and similarly affect dispositions by the court and can steer the case into a tactically unstable position well before a jury trial is on the horizon.
In mock bench trials conducted over the years, the similarity of judges’ and jurors’ reactions to witnesses has been noted on multiple occasions, suggesting that the most potent forms of witness preparation are those which are conducted literally as early as possible with the reactions of both judges and jurors in mind. In short, persuasion of judges on many employment-related issues is not dissimilar to persuasion of the jury, and witness training in particular should not be relegated to a position following certification. (Indeed, when we receive a call for help in witness training for a pre-certification deposition, we know that the litigator is well-informed on how to use such services and adequately prepare his case).
Many trial team managers assume that the adequacy of witness testimony is a matter of verbal content, and that “sitting down and talking to the witness” is essentially the basic component of witness preparation. Experience with witnesses and their actual performance creates a markedly different perspective, however; in reality, effective witness training is more like teaching a 5-year-old how to ride a bike, and “sitting down and talking” in this task is about equally effective. Very few witnesses have the inherent ability to maintain composure in the pressurized context of class action litigation depositions and implementing effective approaches to deal with their apprehension is not obvious or straightforward.
Research in employment cases generally points to the universal conclusion that when employment disputes are construed as arising from personality conflicts or subjective foibles among defendant supervisors, the defense in general is saddled with severe tactical vulnerabilities. By contrast, defendants are on much more solid ground strategically when employment decisions and regulatory matters that affect plaintiffs are linked to more objective, verifiable performance-based criteria. Nonverbal behaviors are, virtually by definition, a set of indicia connected with subjective states of the witness. When judges or jurors get a sense that defendant supervisors or managers have any type of personality problems, biases, prejudices or temperament flaws, the strength of the defendant’s position in the case is undermined accordingly, and the negative biases alluded to previously become fully activated.
Once the toothpaste comes out of the tube with a witness, it cannot be placed back inside. Nonverbal behavior is translated into character assessment with lightning speed, and the first impression is difficult to dislodge. As one juror stated in a class action matter after watching the senior managers, “The culture of the company is a ‘good-old-boy’ network – that’s the first impression I got when I looked into their faces.” In other words, these assessments can be made just by observing facial expressions, before the testimony even begins.
It is also important to keep in mind that jurors do not deliberate based on what happens in the courtroom – they deliberate based on what they store and retain in memory, and then retrieve from memory later when the time comes to make a decision. What is retrieved from memory later to guide deliberations is a function of how strongly retained in memory the material is, and the manner in which information is presented has a pronounced, direct effect on such retention. In short, information that is graphically represented in a lucid and compelling visual context has a distinct advantage over competing material that is not similarly displayed insofar as creating an impact on the ultimate decision on the case. Again, this process occurs for judges in much the same way as jurors, although admittedly judges will have more information at their disposal in terms of legal briefs and other literary material on the applicable law surrounding the case.
It is important to keep in mind, however, that – again for jurors and judges – dispositions on a given case are made on the basis of a tiny subset of all the potential information available, wither it be data, evidence or legal parameters involved. The goal of effectively developed demonstrative exhibits is to guide the decision-maker through a vast array of potential facts and issues, focusing the attention on those with the most favorable impact and deflecting the attention away from those creating the most severe vulnerabilities. This process then “shapes” the retained information on the case to regulate the ultimate decision.
For decertification, various means of analyzing and displaying summary data are required to create the impression of heterogeneity among the putative class in order to dissuade the court from concluding that the potential class members are similarly situated. Judges in many instances may need assistance in assimilating the importance of various types of analyses, requiring innovative approaches to graphics as a means to simplify concepts necessary to obtain a favorable ruling at the certification stage. The effectiveness of alternative means of displaying and presenting data can, and should, be tested in a mock bench trial setting to ensure that when the time comes to make the arguments before the court, the most compelling visual case possible is ready to be presented.
For both judges and jurors, psychological processes involved in decision-making in employment cases can often be centered on key witness testimony. In our experience, it is difficult to overestimate the extent to which effective witness training procedures are overlooked by trial teams. This deficiency is in turn linked to a pervasive under-appreciation of the pivotal role of nonverbal behavior and in particular the practical means and specific procedures available for optimizing performance in this domain.
Testing a case with a pre-recruited group of judges or jurors almost invariably produces tactical benefits that cannot possibly be anticipated. Many of these benefits occur in the area of information reduction, not information augmentation. That is, within the virtually unmanageable amount of evidence and data available in the class action employment case, there will only be a handful of issues that are truly at the fulcrum of a verdict decision. Identifying these key issues early in the litigation not only makes the trial team more strategically focused, but it makes their efforts far more cost-effective as well.
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